AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3893191
(State or other jurisdiction (I.R.S. Employer
of Identification Number)
incorporation or organization)
155 FRANKLIN ROAD, SUITE 400
BRENTWOOD, TENNESSEE 37027
(Address of Principal Executive Offices) (Zip Code)
COMMUNITY HEALTH SYSTEMS, INC.
DIRECTORS' FEES DEFERRAL PLAN
(Full title of the plan)
RACHEL A. SEIFERT
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
155 FRANKLIN ROAD, SUITE 400
BRENTWOOD, TENNESSEE 37027
(615) 373-9600
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED BE OFFERING AGGREGATE REGISTRATION
REGISTERED PRICE PER OFFERING FEE
(1) SHARE (2) PRICE (2)
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Common Stock, par value
$0.01 per share (the
"Common Stock") 150,000 shares $27.75 $4,162,500 $527.39
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(1) Includes an indeterminate number of shares of Common Stock that may be
issued in the event of stock splits, stock dividends or similar
transactions in accordance with Rule 416 of the Securities Act of
1933, as amended (the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act based upon the
average of the high and low sales prices for the Common Stock as
reported by the New York Stock Exchange on December 9, 2004.
EXPLANATORY NOTE
On December 14, 2004, we adopted the Community Health Systems, Inc.
Directors' Fees Deferral Plan (the "Plan"). The purpose of this
Registration Statement on Form S-8 is to register 150,000 shares of Common
Stock that may be issued under Plan.
PART I
Participants in the Plan will be provided with the documents
containing information specified by Part I of this Registration Statement
in accordance with Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "SEC") under the Securities Act. These documents
constitute, along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II, a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms or access our SEC filings on the SEC's web
site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the
New York Stock Exchange located at 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offerings registered on this Registration Statement:
(a) Our Annual Report on Form 10-K for the year ended December 31,
2003, as amended by the Annual Report on Form 10-K/A on April 2,
2004.
(b) Our Registration Statement on Form 8-A filed with the SEC on June
5, 2000, which describes the terms of the Common Stock.
(c) Our Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 2004, June 30, 2004, and September 30, 2004.
(d) Our Current Report on Form 8-K dated November 30, 2004 and our
two Current Reports on Form 8-K dated December 3, 2004.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the issuance of the securities
offered hereby will be passed upon for us by Fried, Frank, Harris, Shriver
& Jacobson LLP.
Item 6. Indemnification of Directors and Officers
Our Certificate of Incorporation limits the liability of our directors
to us and our stockholders to the fullest extent permitted by Delaware law
for monetary damages for breach of fiduciary duty as a director, except for
liability:
o for any breach of the director's duty of loyalty to us or our
stockholders;
o for acts or omissions which are not in good faith or which
involve intentional misconduct or knowing violation of the law;
o under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payment of dividends, stock purchases, or
redemption; and
o for any transaction from which the director shall have derived an
improper personal benefit.
In addition, our Certificate of Incorporation and By-Laws provide that
our directors and officers will be indemnified to the fullest extent
permitted by Delaware law. This indemnification is not exclusive of any
other rights that our directors and officers may be entitled to.
We have entered into indemnification agreements with our directors and
executive officers. These agreements contain provisions that may require
us, among other things, to indemnify these directors and executive officers
against certain liabilities that may arise because of their status or
service as directors or executive officers, advance their expenses incurred
as a result of any proceeding against them as to which they could be
indemnified and obtain directors' and officers' liability insurance.
Beyond this, we maintain our directors' and officers' liability
insurance to provide our directors and officers with insurance coverage for
losses arising from claims for breaches of duty, negligence, error and
other wrongful acts.
Section 145 of the Delaware General Corporation Law provides, in
substance, that Delaware corporations shall have the power, under specified
circumstances, to indemnify their directors, officers, employees and agents
in connection with actions, suits or proceedings brought against them by a
third party or in the right of the corporation, by reason of the fact that
they were or are directors, officers, employees or agents, against expenses
incurred in any such action, suit or proceedings. The Delaware General
Corporation Law also provides that Delaware corporations may purchase
insurance on behalf of any director, officer, employee or agent.
The Plan provides that no member of the committee administering the
Plan will be liable for any act done or determination made in good faith
with respect to the Plan or any transaction under it.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1** Our Restated Certificate of Incorporation filed as
Exhibit 3.1 to our Form 10-Q for the quarterly period
ended June 30, 2000.
4.2** Our Amended and Restated By-Laws filed as Exhibit 3.2
to our Form 10-K for the year ended December 31, 2000.
4.3* Community Health Systems, Inc. Directors' Fees
Deferral Plan
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson
LLP as to the legality of securities offered under
the Community Health Systems, Inc. Directors' Fees
Deferral Plan.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
LLP (Included in Exhibit 5).
23.2* Consent of Deloitte & Touche LLP.
24* Power of Attorney (included in the signature pages of
this Registration Statement).
- ----------------------
* Filed herewith.
** Incorporated by reference.
Item 9. Undertakings
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports we filed under Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) We undertake that, for the purpose of determining any liability
under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of those
securities at that time will be deemed to be the initial bona fide
offering.
(c) To the extent that indemnification for liabilities arising under
the Securities Act may be permitted to our directors, officers and
controlling persons in accordance with the provisions described in Item 6
of this Registration Statement, or otherwise, we have been advised that, in
the opinion of the SEC, indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by us of expenses incurred or paid by one of our directors,
officers or controlling persons in the successful defense of any action,
suit or proceeding) is asserted by a director, officer or controlling
person in connection with the securities being registered, we will, unless
in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether indemnification is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, we certify that we
have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8, and have duly caused this Registration Statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the
City of Brentwood, State of Tennessee, on December 14, 2004.
COMMUNITY HEALTH SYSTEMS, INC.
/s/ Wayne T. Smith
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By: Wayne T. Smith
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wayne T. Smith, as his or her true
and lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for him or her in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and any and all additional
registration statements pursuant to Instruction E to Form S-8 and any and
all documents in connection therewith, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorney-in-fact and agent full power and authority
to do and perform each and every act and thing requisite and necessary to
be done in and about the premises in order to effectuate the same, as fully
to all intents and purposes as he or she might or could do in person, and
hereby ratifies, approves and confirms all that his or her said
attorney-in-fact and agent, each acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
- --------------------------------- ----------------------------- ---------------
President, Chief Executive
/s/ Wayne T. Smith Officer and Director December 14,
- ------------------------------ (principal executive officer) 2004
Wayne T. Smith
Executive Vice President and
Chief Financial Officer
/s/ W. Larry Cash (principal financial officer) December 14,
- ------------------------------ 2004
W. Larry Cash
Vice President and Corporate
Controller (principal
/s/ T. Mark Buford accounting officer)
- ------------------------------ December 14,
T. Mark Buford 2004
/s/ John A. Clerico Director December 14,
- ------------------------------ 2004
John A. Clerico
/s/ Dale F. Frey Director December 14,
- ------------------------------ 2004
Dale F. Frey
/s/ John A. Fry Director December 14,
- ------------------------------ 2004
John A. Fry
/s/ Harvey Klein, M.D. Director December 14,
- ------------------------------ 2004
Harvey Klein, M.D.
/s/ Julia B. North Director December 14,
- ------------------------------ 2004
Julia B. North
/s/ H. Mitchell Watson Jr. Director December 14,
- ------------------------------ 2004
H. Mitchell Watson, Jr.
Constituting a majority of the Board of Directors.
Index to Exhibits
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1** Our Restated Certificate of Incorporation filed as
Exhibit 3.1 to our Form 10-Q for the quarterly period
ended June 30, 2000.
4.2** Our Amended and Restated By-Laws filed as Exhibit 3.2
to our Form 10-K for the year ended December 31,
2000.
4.3* Community Health Systems, Inc. Directors' Fees
Deferral Plan
5* Opinion of Fried, Frank, Harris, Shriver & Jacobson
LLP as to the legality of securities offered under
the Community Health Systems, Inc. Directors' Fees
Deferral Plan.
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
LLP (Included in Exhibit 5).
23.2* Consent of Deloitte & Touche LLP.
24* Power of Attorney (included in the signature pages of
this Registration Statement).
- ----------------------
* Filed herewith.
** Incorporated by reference.
Exhibit 4.3
COMMUNITY HEALTH SYSTEMS, INC.
DIRECTORS' FEES DEFERRAL PLAN
Adopted as of December 14, 2004
COMMUNITY HEALTH SYSTEMS, INC.
DIRECTOR'S FEES DEFERRAL PLAN
SECTION 1. PURPOSE, PARTICIPATION
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(a) Purpose: The purpose of this Directors' Fees Deferral Plan (the
"Plan") is to enable Community Health Systems, Inc. (the "Corporation") to
attract and retain Directors of outstanding ability by providing them with
a mechanism to defer and accumulate Director's fees, meaning (1) the
retainer, and (2) fees for attendance at meetings of the Board of Directors
of the Corporation (the "Board") and Board committees.
(b) Participation: This Plan extends to Directors of the Corporation
not employed by the Corporation or any subsidiary.
SECTION 2. PAYMENT OF DEFERRED AMOUNTS
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(a) Deferral Election: At any time prior to the beginning of a
calendar year, a Director may elect that all or any specified portion of
the Director's fees to be earned during such calendar year be credited to a
Director's Cash Account and/or a Director's Stock Unit Account maintained
on such Director's behalf in lieu of payment (a "Deferral Election"). A
Director may also make a Deferral Election during the 30 days following the
date on which a Director first becomes eligible to receive Director's fees,
although any Deferral Election made pursuant to this sentence will apply
only to all or any specified portion of the Director's fees earned
thereafter. Each Deferral Election must be made on a deferral election form
to be provided by the Corporation and must specify (i) the portion of the
Director's fees to be deferred, (ii) the Payment Commencement Event (as
hereinafter defined), and (iii) the Payment Method (as hereinafter
defined). Each Deferral Election must be submitted to the Secretary of the
Corporation in writing, and will be deemed to authorize deferral to only a
Director's Cash Account except to the extent deferral to a Director's Stock
Unit Account is expressly specified.
(b) Effect of Deferral Election: Pursuant to such Deferral Election,
the Corporation (i) will not pay the Director's fees covered thereby and
(ii) will make payments in accordance with the Deferral Election and this
Section 2.
(c) Payment Commencement Event. At the time of making the Deferral
Election, a Director will designate as a "Payment Commencement Event"
either (1) the Director's separation from service as a Director of the
Corporation (or any successor), or (2) the Director's attainment of an age
specified by the Director, provided that such age is not attained prior to
the end of the calendar year following the date on which the Deferral
Election is made. In addition, (A) a Director who has elected (2) as a
Payment Commencement Event may also elect that, in the event that the
Director experiences a separation from service as a Director of the
Corporation within one year following a "Change of Control" (as defined in
Section 5(g)), the Payment Commencement Event for payments from a deferral
account will be the Director's separation from service as a Director, and
(B) a Director may also elect as a Payment Commencement Event the Director
becoming Disabled (as hereinafter defined) if that is earlier than any
other Payment Commencement Event elected by the Director. For purposes of
this Plan, "Disabled" means that a Director is unable to engage in any
substantial gainful activity because of a medically determinable physical
or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months.
(d) Payment. Payment of amounts credited to a Director's Cash Account
and Stock Unit Account will be made in accordance with the Payment Method
elected by the Director in his Deferral Election. For purposes of this
Plan, "Payment Method" shall mean, with respect to payments of amounts
credited to a Director's Cash Account and Stock Unit Account pursuant to a
Deferral Election, either (i) a lump sum payment on the last business day
of the calendar quarter in which the Payment Commencement Event (either as
originally designated or as subsequently designated pursuant to Section
2(e)) occurs, or (ii) a number of annual installments (not exceeding 15)
specified by the Director in his Deferral Election commencing on the last
business day of the calendar quarter in which the Payment Commencement
Event (either as originally designated or as subsequently designated
pursuant to Section 2(e)) occurs and, subject to Section 2(g), continuing
to be made on the last business day of that same calendar quarter in each
subsequent year. The amount of any installment payment made with respect to
amounts subject to a Deferral Election shall equal the sum of (i) the
amount subject to that Deferral Election and credited to the Director's
Cash Account as of the applicable payment date divided by the number of
installments remaining to be paid (including the installment with respect
to which the determination is being made) (the "Installment Factor") and
(ii) a number of shares of the Corporation's Common Stock, par value $.01
per share (the "Common Stock") equal to the number of Stock Units subject
to that Deferral Election and credited to the Director's Stock Unit Account
as of the applicable payment date divided by the Installment Factor.
Notwithstanding the foregoing, unless otherwise required pursuant to
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"),
the annual installment Payment Method shall not be an option for a Payment
Commencement Event arising in connection with a separation from service
following a Change of Control.
(e) Changes in Payment Commencement Event or Payment Method. A
Director may also elect to defer the Payment Commencement Event to a later
Payment Commencement Date specified by the Director or change the Payment
Method with respect to amounts subject to a Deferral Election. Such
elections (1) will not be effective for 12 months after the date on which
such election is made, (2) must be made not less than 12 months prior to
the date of the first scheduled payment of any amount subject to that
Deferral Election, (3) must provide for an additional deferral for a period
of not less than 5 years from the date the payment would otherwise have
been made (except with respect to amounts payable upon a Director becoming
Disabled or upon the death of the Director), and (4) must be submitted to
and approved by the Plan Committee. A Director may make no more than one
election pursuant to this Section 2(e) in any calendar year with respect to
amounts subject to any particular Deferral Election. A Director who has
elected the annual installment Payment Method with respect to amounts
subject to a Deferral Election may not change the Payment Method with
respect to such amounts to a lump sum payment unless such change is
permitted by the regulations promulgated under Section 409A of the Code.
(f) Renewal of Payment Commencement and Payment Method Elections. Once
a Deferral Election, (including designation of the portion of Director's
fees to be deferred, the Payment Commencement Event and the Payment Method)
has been made, it will be automatically applied to Director's fees earned
in all subsequent calendar years unless the Director changes or revokes
such election prior to the commencement of such calendar year. Each such
change or revocation must be submitted to the Secretary of the Corporation
in writing. However, except as provided in Section 2(e), each Deferral
Election is irrevocable as to Director's fees earned prior to the calendar
year next following any change or revocation.
(g) Death. A Director may designate a beneficiary (and change such
beneficiary, from time to time) for payment of any balance of the deferral
account at the Director's death. Upon a Director's death, any balance in
the deferral account (including amounts credited to such account as
specified in Section 3(b) and Section 4(b)) will be paid to the deceased
Director's beneficiary in a lump sum at the end of the first calendar
quarter which ends at least 30 days after the Director dies. If no
beneficiary has been designated, the Director's estate will be deemed the
beneficiary, and any payments pursuant to this Section 2(g) will be paid in
a lump sum at the end of the first calendar quarter which ends at least 30
days after appointment of the deceased Director's legal representative.
SECTION 3. CREDITS AND DEBITS TO DIRECTOR'S CASH ACCOUNT
- ---------------------------------------------------------
(a) Principal. The Corporation will create and maintain on its books a
Director's Cash Account for each Director who has made a Deferral Election
to such an account under Section 2(a). The Corporation will credit to such
account the amount of any Director's fee which would have been paid to the
Director but for such Deferral Election, as of the date the fee would have
otherwise been payable.
(b) Interest. At the end of each calendar quarter, regardless of
whether any other credits are then made to the Director's Cash Account or
whether the Director is then a Director, the Corporation will also credit
to the Director's Cash Account a sum which is equal to the product of (i)
the average daily balance in the Director's Cash Account for the quarter
(without regard to any debits made at the end of such quarter), times (ii)
one-fourth of the annual Base Rate (prime rate) for corporate borrowers
quoted by J.P. Morgan Chase (or any successor thereto) of New York as of
the first business day of the quarter.
(c) Debits. At the end of each calendar quarter, the Corporation will
make a payment if required under the payment schedule for such Director's
Cash Account and will debit the Director's Cash Account for the amount
thereof. Payment with respect to a Director's Cash Account will be in cash
only.
(d) Mid-quarter Payments. If Payment is to be made other than at the
end of a calendar quarter, prior to such payment the Corporation will
credit to the Director's Cash Account an amount equal to the product of (i)
the average daily balance in the Director's Cash Account for the period
from the beginning of the calendar quarter to the date of payment (without
regard to any debits to be made upon such payment), times (ii) a fraction
of the annual Base Rate (prime rate) for corporate borrowers quoted by J.
P. Morgan Chase (or any successor thereto) as of the first business day of
the quarter, the numerator of which is the number of days in the period
described in clause (i), and the denominator of which is 365.
SECTION 4. CREDITS AND DEBITS TO DIRECTOR'S STOCK UNIT ACCOUNT
- ---------------------------------------------------------------
(a) Stock Units. The Corporation will create and maintain on its books
a Director's Stock Unit Account for each Director who has made a Deferral
Election under Section 2(a) and expressly specifies deferral to such Stock
Unit Account. The Corporation will credit to such account the number of
Stock Units equal to the number of shares of Common Stock that could be
purchased with the amount of any Director's fee which would have been paid
to the Director but for such Deferral Election, as of the date the fee
would have otherwise been payable. The number of Stock Units will be
calculated to three decimals by dividing the amount of the Director's fee
as to which a Director's Stock Unit Account Deferral Election was made by
the closing price of the Corporation's common stock as reported on the New
York Stock Exchange on the date the fee would have otherwise been payable.
(b) Dividends. As of the date any dividend is paid to holders of
shares of Common Stock, each Director's Stock Unit Account, regardless of
whether the Director is then a Director, will be credited with additional
Stock Units equal to the number of shares of Common Stock that could have
been purchased with the amount which would have been paid as dividends on
that number of shares of Common Stock (including fractions of a share to
three decimals) equal to the number of Stock Units attributed to such
Director's Stock Account as of the record date applicable to such dividend.
The number of additional Stock Units to be credited will be calculated to
three decimals by dividing the amount which would have been paid as
dividends by the closing price of the Corporation's common stock as
reported on the New York Stock Exchange as of the date the dividend would
have been paid. In the case of dividends paid in property other than cash,
the amount of the dividend shall be deemed to be the fair market value of
the property at the time of the payment of the dividend, as determined in
good faith by the Plan Committee.
(c) Debits and Calculation of Payments. The Corporation will debit the
Director's Stock Unit Account for Stock Units as required under the payment
schedule for such Director's Stock Unit Account. Payment with respect to
whole Stock Units will be in shares of Common Stock only, at the rate of
one shares of Common Stock per Stock Unit. Until such time as shares of
Common Stock have been listed on The New York Stock Exchange for issuance
under this Plan, only Treasury shares shall be used for such payment. With
respect to fractional Stock Units, payment will be made in cash only, and
calculated by multiplying the fractional number of the Stock Unit to be
debited by the closing price of the Corporation's common stock as reported
on the New York Stock Exchange as of the last business day of the week
preceding the week of the date the Stock Units are payable. Should payment
of shares of Common Stock be made with respect to Stock Units after the
record date, but before the payment date applicable to a dividend paid to
holders of shares of Common Stock, the dividend that would otherwise have
been credited as additional Stock Units to a Director's Stock Unit Account
in respect of those shares will be paid to the Directors in cash (or other
property) at the same time as the dividend is paid to shareholders
generally.
(d) Adjustment. If at any time the number of outstanding shares of
Common Stock is increased as the result of any stock dividend, stock split,
subdivision or reclassification of shares, the number of Stock Units with
which each Director's Stock Unit Account is credited will be increased in
the same proportion as the outstanding number of shares of Common Stock is
increased. If the number of outstanding shares of Common Stock is decreased
as the result of any combination, reverse stock split or reclassification
of shares, the number of Stock Units with which each Director's Stock Unit
Account is credited will be decreased in the same proportion as the
outstanding number of shares of Common Stock is decreased. In the event the
Corporation is consolidated with or merged into any other corporation and
holders of shares of Common Stock receive shares of the capital stock of
the resulting or surviving corporation, there shall be credited to each
Director's Stock Unit Account, in lieu of the extant Stock Units, new Stock
Units in an amount equal to the product of the number of shares of capital
stock exchanged for one share of the Corporation's common stock upon such
consolidation or merger, and the number of Stock Units with which such
account then is credited. If, in such a consolidation or merger, holders of
shares of Common Stock receive any consideration other than shares of the
capital stock of the resulting or surviving corporation or its parent
corporation, the Plan Committee will determine any appropriate change in
Directors' Stock Unit Accounts. In the event of a recapitalization or other
corporate transaction affecting the Common Stock, the Plan Committee will
determine an appropriate change in Directors' Stock Unit Accounts.
(e) Accounting. Amounts credited to a Director's Cash Account and/or
Stock Unit Account in respect of amounts subject to a particular Deferral
Election shall at all times be accounted for separately under this Plan. A
change in a particular Deferral Election shall apply to all amounts
separately accounted for with respect to that Deferral Election. Any
references herein to "amounts subject to a Deferral Election" shall be
deemed to refer to the amounts deferred pursuant to a particular Deferral
Election, amounts credited to a Directors Cash Account and/or Stock Unit
Account in respect of those deferrals and any amounts distributed or to be
distributed from the Director's Cash Account and/or Stock Unit Account in
respect of those deferrals.
SECTION 5. UNFUNDED ARRANGEMENT
- --------------------------------
Neither this Plan nor any deferral account will be funded; a deferral
account and all entries thereto constitute bookkeeping records only and do
not relate to any specific funds or shares of the Corporation. Payments due
with respect to balances in a deferral account will be made from the
general assets of the Corporation, and the right of any participant to
receive future payments under this Plan's provisions will be an unsecured
claim against such assets.
SECTION 6. ADMINISTRATION
- --------------------------
(a) Plan Committee. The Plan will be administered by a Plan Committee,
which will be the Compensation Committee of the Board, or such other
committee as may be appointed by the Board, and may include Directors who
have elected to participate in the Plan. No member of the Plan Committee
will be liable for any act done or determination made in good faith.
(b) Committee Determination Final. The construction and interpretation
of any provision of the Plan by the Plan Committee, and a determination by
the Plan Committee of the amount of any deferral account, will be final and
conclusive.
(c) Amendments. The Corporation, by action of its Board, reserves the
right to terminate, modify or amend this Plan, effective prospectively as
of the first day of any calendar quarter; provided, however, that (i) the
Plan will not be subject to termination, modification or amendment with
respect to any balance of a deferral account and rights therein, including
the right to future interest pursuant to Section 3(b) and future dividends
pursuant to Section 4(b), unless the affected Director consents and (ii)
the Board may delegate to any officer of the Corporation the authority to
adopt any amendment to the Plan deemed necessary so that the Plan complies
or continues to comply with all applicable law, including without
limitation, complying with Section 409A of the Code, provided that any such
amendment does not result in any material cost to the Corporation.
(d) Non-Alienation. No Director (or estate of a Director) will have
power to transfer, assign, anticipate, mortgage or otherwise encumber any
rights or any amounts payable hereunder; nor will any such rights or
payments be subject to seizure for the payment of any debts, judgments,
alimony, or separate maintenance, or be transferable by operation of law in
the event of bankruptcy, insolvency, or otherwise.
(e) Expenses. The expenses of administering the Plan will be borne by
the Corporation and not be charged against any deferral account.
(f) Withholding. The Corporation may deduct from all cash payments any
taxes required to be withheld with respect to such payments. In order to
enable the Corporation to meet any applicable federal, state or local
withholding tax requirements arising as a result of payments made hereunder
in the form of stock, a Director shall pay the Corporation the amount of
tax to be withheld or may elect to satisfy such obligation by having the
Corporation withhold shares of Common Stock that otherwise would be
delivered to the Director pursuant to the deferral account payment for
which the tax is being withheld, by delivering to the Corporation other
shares of Common Stock owned by the Director prior to the payment date, or
by making a payment to the Corporation consisting of a combination of cash
and such shares of Common Stock. Such an election shall be made prior to
the date to be used to determine the tax to be withheld. The value of any
share of common stock to be withheld by, or delivered to, the Corporation
pursuant to this Section 6(f) shall be the closing price of the
Corporation's common stock as reported on the New York Stock Exchange on
the date to be used to determine the amount of tax to be withheld.
(g) Change of Control. A "Change of Control" means the occurrence of
any of the following events with respect to the Corporation:
1. An acquisition (other than directly from the Corporation) of
any voting securities of the Corporation (the "Voting Securities") by
any "Person" (as the term person is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than fifty percent (50%) of the then outstanding
shares of the Corporation's Common Stock, par value $.01 per share
(the "Common Stock") or the combined voting power of the Corporation's
then outstanding Voting Securities; provided, however, that in
determining whether a Change in Control has occurred shares of Common
Stock or Voting Securities which are acquired in a "Non-Control
Acquisition" ("as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan
(or a trust forming a part thereof) maintained by (A) the Corporation
or (B) any corporation or other Person the majority of the voting
power, voting equity securities or equity interest of which is owned,
directly or indirectly, by the Corporation (for purposes of this
definition, a "Related Entity"), (ii) the Corporation or any Related
Entity, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
2. The individuals who, as of December 14, 2004, are members of
the Board (the "Incumbent Board"), cease for any reason to constitute
at least a majority of the members of the Board or, following a Merger
(as hereinafter defined) which results in a Parent Corporation (as
hereinafter defined), the board of directors of the ultimate Parent
Corporation; provided, however, that if the election, or nomination
for election by the Corporation's common stockholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Plan,
be considered a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a
result of an actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any
Proxy Contest; or
3. The consummation of:
(i) A merger, consolidation or reorganization with or into
the Corporation or in which securities of the Corporation are
issued (a "Merger"), unless such Merger is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a Merger
where:
(A) the stockholders of the Corporation immediately
before such Merger own directly or indirectly immediately
following such Merger at least fifty percent (50%) of the
combined voting power of the outstanding voting securities
of (x) the corporation resulting from such Merger (the
"Surviving Corporation"), if fifty percent (50%) or more of
the combined voting power of the then outstanding voting
securities of the Surviving Corporation is not Beneficially
Owned, directly or indirectly, by another Person (a "Parent
Corporation"), or (y) if there is one or more than one
Parent Corporation, the ultimate Parent Corporation; and
(B) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such Merger constitute at least a majority of
the members of the board of directors of (x) the Surviving
Corporation, if there is no Parent Corporation or (y) if
there is one or more than one Parent Corporation, the
ultimate Parent Corporation;
(ii) A complete liquidation or dissolution of the
Corporation; or
(iii) The sale or other disposition of all or substantially
all of the assets of the Corporation to any Person (other than a
transfer to a Related Entity or under conditions that would
constitute a Non-Control Transaction with the disposition of
assets being regarded as a Merger for this purpose or the
distribution to the Corporation's stockholders of the stock of a
Related Entity or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding shares of Common Stock or Voting Securities as a result of the
acquisition of shares of Common Stock or Voting Securities by the
Corporation which, by reducing the number of shares of Common Stock or
Voting Securities then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons, provided that if a Change
in Control would occur (but for the operation of this sentence) as a result
of the acquisition of shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by the Corporation, the
Subject Person becomes the Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases the percentage of the
then outstanding shares of Common Stock or Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall occur.
(h) Stock Unit Status. Stock Units are not, and do not constitute,
shares of Common Stock, and no right as a holder of shares of Common Stock
devolves upon a Director by reason of participation in this Plan.
(i) Savings Provision. The Corporation intends for the Plan to comply
with Section 409A of the Code and the regulations issued thereunder. If
there is ambiguity as to the intent or meaning of any provision of the
Plan, such provision shall be interpreted in a manner that complies with
Section 409A and regulations promulgated thereunder.
Exhibit 5
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson LLP
(a partnership including professional corporations)]
December 15, 2004
Community Health Systems, Inc.
155 Franklin Road, Suite 400
Brentwood, Tennessee 37027
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Community Health Systems,
Inc., a Delaware corporation (the "Company") in connection with the
registration, pursuant to a Registration Statement on Form S-8 (the "Form
S-8"), of 150,000 shares of common stock, par value $0.01 per share, of the
Company (the "Shares"). The Shares may be issued by the Company under the
Community Health Systems, Inc. Directors' Fees Deferral Plan (the "Plan").
With your permission, all assumptions and statements of reliance herein
have been made without any independent investigation or verification on our
part except to the extent otherwise expressly stated, and we express no
opinion with respect to the subject matter or accuracy of such assumptions
or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of
all natural persons executing documents, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified documents of all copies submitted to us as conformed
or reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the documents and certificates
and oral or written statements and other information of or from
representatives of the Company and others and assume compliance on the part
of all parties to the documents with their covenants and agreements
contained therein. We also have assumed that any future changes to the
terms and conditions of the Plan will be duly authorized by the Company and
will comply with all applicable laws.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the issuance of the Shares pursuant to the Plan has been duly authorized
and that such Shares, when issued, paid for and delivered as authorized in
accordance with the Plan, will be validly issued, fully paid and
non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware (the "GCLD") and applicable
provisions of the Delaware Constitution, in each case as currently in
effect, and reported judicial decisions interpreting the GCLD and the
Delaware Constitution. The opinions expressed herein are given as of the
date hereof, and we undertake no obligation to supplement this letter if
any applicable laws change after the date hereof or if we become aware of
any facts that might change the opinions expressed herein after the date
hereof or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Form S-8 relating to the registration of the Shares. In giving such
consent, we do not hereby admit that we are in the category of such persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended.
The opinions expressed herein are solely for your benefit in
connection with the Form S-8 and may not be relied on in any manner or for
any purpose by any other person or entity.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement
of Community Health Systems, Inc. on Form S-8 of our report dated February
25, 2004, appearing in the Annual Report on Form 10-K/A of Community Health
Systems, Inc. for the year ended December 31, 2003 and our report dated
February 25, 2004 (December 1, 2004 as to Notes 2, 10 and 13), appearing in
the Current Report on Form 8-K dated December 3, 2004 of Community Health
Systems, Inc. (both reports express an unqualified opinion and include an
explanatory paragraph referring to the Company changing its method of
accounting for goodwill and other intangible assets by adopting certain
provisions of Statement of Financial Accounting Standards No. 142, Goodwill
and Other Intangible Assets, effective January 1, 2002).
/s/ Deloitte & Touche LLP
Nashville, Tennessee
December 15, 2004